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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> E (Through Her Children's Guardian) & Anor v A Mother & Anor [2019] EWCA Civ 1557 (12 September 2019) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2019/1557.html Cite as: [2019] 3 FCR 417, [2019] EWCA Civ 1557, [2019] 4 WLR 134, [2019] WLR(D) 515 |
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ON APPEAL FROM THE FAMILY COURT AT LIVERPOOL
HH Judge Greensmith
LV18C04157
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF E (A CHILD) (REFUSAL OF PLACEMENT ORDER)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LINDBLOM
and
LORD JUSTICE BAKER
____________________
E (through her children's guardian) (1) Z BOROUGH COUNCIL (2) |
Appellants |
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- and - |
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A MOTHER (1) A FATHER (2) |
Respondent |
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Damian Sanders (instructed by Local Authority solicitor) for the Second Appellant,
Joanna Mallon (instructed by Morecrofts LLP) for the First Respondent mother
Jamil Khan (instructed by RMNJ Solicitors) for the Second Respondent father
Hearing dates : 12 September 2019
____________________
Crown Copyright ©
LORD JUSTICE BAKER :
Introduction
"Unusually time is on the side of this child. There is, in my view just enough time to demonstrate that change is possible and sustainable within the timetable for the child. We have not reached a position where nothing else but adoption will do."
Background
"(f) On 25 June 2019 the court found that:
(1) threshold for the purposes of s.31(2) of the Children Act 1990 satisfied on the basis put forward by the local authority in the agreed threshold statement dated 1 May 2019;
(2) E remains at risk of suffering significant harm as a result of the care she would receive from her mother and father;
(3) no suitable kinship carer has been identified;
(4) on all the evidence and on analysing the welfare checklist, the welfare of E requires the making of a care order, but not in accordance with the final care plan of the local authority;
(5) on all the evidence and on analysing the welfare checklist, the welfare of E requires her to remain in foster care pending the implementation of a prolonged plan of rehabilitation;
(6) the basis upon which the court required the making of the final care order pursuant to a prolonged plan of rehabilitation whilst E remained in foster care is set out in detail within the agreed written judgment of the court annexed hereto;
(7) the court will expect the local authority to pay for support where that is not available from the NHS within a period that it has the chance to work and its efficacy assessed within a timetable for the child which the court proposes might be 12 to 15 months.
(g) On 25 June 2019, the court directed that the matter be listed on 17 September 2019 on a part-heard basis for the making of a final care order, approval of the amended care plan and the dismissal of the placement proceedings."
The judgment
"looking at this evidence in the context of the visible improvements in the father's life generally and especially improvements made together with the mother (without any significant support from the local authority), it is reasonable to find that the father's drug use is improving although further testing would be required to demonstrate sustainable change".
"Recent drug tests of the mother demonstrate a reduction in use. The mother gave evidence asserting that she has not used crack cocaine or heroin since November 2018. Although the tests provided are evidence of more recent use, they do not indicate usage beyond the middle of April 2019. Considering the mother's stated position and the tests available, the court would need to be satisfied with more recent evidence of the mother's failure to abstain to find that the mother is not now drug-free, as she says she is."
"there are reasonable grounds to believe that … the parents are committed to change (ref their change of lifestyle); there is emerging solid evidence that they will be able to maintain the change (ref the father gaining employment and the parents' accommodation)".
"At best this is a careless misrepresentation of a significant fact. Being generous to the social worker, rather than forming the view that she has deliberately attempted to misrepresent, I would rather believe that it is an example of confirmation bias on the social worker's part".
A further reason given for discounting the social worker's assessment was that she had only visited the parents together on one occasion.
"46. Unusually time is on the side of the child. There is, in my view, just enough time to demonstrate that change is possible and sustainable within the timetable for the child. We have not reached a position where nothing else but adoption will do.
47. Both parents accept that a care order could be made in this case; it is implicit that the threshold for making such an order is made out. Having regard to the child's welfare is my paramount consideration and … the welfare checklist in s.1(3) of the Children Act 1989. I am entirely satisfied that it would serve the child's welfare to make a care order. Before doing so, where I disagree with the local authority's plan following the making of an order, I must ask the local authority to prepare a revised care plan reflecting the court's assessment of risk.
48. Regarding placement, the test is different. Firstly, I must be satisfied the placement would serve the child's welfare for the whole of her life. In assessing this, I must have the information available to carry out an holistic analysis of all realistic options having regard to the welfare checklist in s.1(4) of the Adoption and Children Act 2002. In this case, the nothing else will do test has not been established by the local authority. My conclusion arises from the following key features:
(a) There is no reference in the final statement of possible support that could be offered to the parents to help them to achieve and sustain improvement and reference the timetable for that support.
(b) There is no recognition and thereby no analysis of the progress the parents have made regarding improvement of their own circumstances and how sustainable these improvements are.
(c) The parenting assessment was apparently compiled after the local authority had firmly decided on a plan of adoption.
(d) The analysis of options available for the child fails to mention key elements of several of the options which have not been considered; these are mentioned above.
(e) There is no analysis by the local authority or the guardian of ongoing contact, parental or sibling.
(f) There are reasonable grounds to believe that the Re S (2014) test is met in that the parents are committed to change (ref their change of lifestyle); there is emerging solid evidence they will be able to maintain the change (ref the father gaining employment and the parents' accommodation); the change can be made within the timetable for the child (before the child reaches two years of age, or thereabouts).
49. Without these key features, in my judgment the local authority's analysis is fundamentally flawed and I am unable on the case presented to find that adoption is the only option which will serve the child's welfare for the whole of her life and it follows from this that I am unable to make a placement order. This means that the only option I have is to make a care order, as I am satisfied that the case for this is made out and that such serve the welfare of the child.
50. In my judgment, the only conclusion I can reach is that the child's welfare would be best served with a cohesive care plan which will support future rehabilitation, if that is possible. I am going to adjourn this application for about six weeks on the basis that I invite the local authority to devise a new care plan based on the child remaining in foster care, while a prolonged plan of supported rehabilitation is devised and if possible implemented. Any planned should be specific as to how the parents will receive the assistance they need. My expectation is that the child will remain in foster care for a further 12 to 15 months while work with the parents is undertaken. I expect the local authority to pay for support where that is not available from the NHS within a period that it has the chance to work and its efficacy assessed within a timetable for this child. I think this is reasonable as the local authority has done nothing to further the recommendations of Ms Roberts since receiving a report in February. I have considered whether to adjourn the proceedings to keep the matter in the court arena. As far as I can see the benefit will be prolonged court monitoring and the continuation of legal aid for the parents. To do this, though, would require an extension well beyond that which is permissible by legislation and current authorities. In any event, the local authority can renew its application for a placement at any time and the parents can apply for the care order to be discharged, at any time, provided they have a reasonable belief the correct test is met."
Submissions
(1) Is there some solid evidence-based reason to believe the parent is committed to making the necessary change?
(2) Is there some solid evidence-based reason to believe the parent will be able to maintain commitment?
(3) Is there some solid evidence-based reason to believe that the parent will be able to make the necessary changes within the child's timetable?
Mr Senior submitted, however, that the judge wrongly misapplied these principles. On the facts of this case, there was no satisfactory evidence that the parents had either the capacity or commitment to make the necessary change within the child's timescale.
(1) The judge was wrong to conclude that the parents' drug use was improving.
(2) He erred in failing to find that the parents had lied about their drug use and were unable to work with the local authority or other professionals in an open and transparent way.
(3) He wrongly concluded that a family placement was a realistic option. He wrongly sanctioned a prolonged rehabilitation plan when there was no solid evidence upon which he could have reasonably concluded that the parents will be able to make and sustain the necessary changes within the child's timescale. He ought to have realised that the parents' failings are so grave that the prospects of their being able to care for their daughter safely are extremely remote.
(4) He failed to engage with or consider the positives that could be gained from adoption.
(5) He wrongly disregarded, or failed to attach sufficient weight to, the professional consensus of the psychologist Ms Roberts, the social worker and the guardian, and placed too much weight upon the parents' assurances they would engage with the rehabilitation plan.
(6) He was wrong to find the psychologist was not entitled to observe that recent incidents of domestic abuse or arguments between the parents were fuelled by alcohol.
Discussion and conclusion
"the analyses of the hair samples … suggested that cannabis and heroin had been used between approximately the start of March 2019 and the middle of May 2019. In addition, the results could be consistent with the use of codeine between approximately the start of March 2019 and the middle of May 2019."
"Domestic abuse is harmful to children, and/or puts children at risk of harm, whether they are subjected to domestic abuse, or witness one of their parents being violent or abusive to the other parent, or live in a home in which domestic abuse is perpetrated (even if the child is too young to be conscious of the behaviour). Children may suffer direct physical, psychological and/or emotional harm from living with domestic abuse, and may also suffer harm indirectly where the domestic abuse impairs the parenting capacity of either or both of their parents."
In this case, there is a worryingly long history of domestic abuse. It has clearly disfigured the parent's relationship for a number of years. Unless this issue is addressed head-on and tackled by the parents, it is difficult to envisage any court placing a child in their care. In my judgment, this issue did not receive sufficient recognition in the judge's analysis.
LORD JUSTICE LINDBLOM
LORD JUSTICE FLOYD